LABOUR DISPUTES AND DISCIPLINARY PROCEDURES

LABOUR DISPUTES AND DISCIPLINARY PROCEDURES

Introduction

The Master in the course of his duties may be confronted by problems relating to the crew either in the form of collective trade disputes involving strike action or individual disciplinary offences. The legitimacy of such trade disputes and the recourse to disciplinary procedures open to the Master is determined by the law of the flag state. Although the discussion in this chapter of trade disputes on board a vessel and disciplinary procedures is limited to English law (please refer to the appendix to this

chapter for a discussion as to the position under Greek law), the principles, especially in relation to the recording of evidence, will be of general application. In addition, this chapter discusses briefly the procedures to be followed by the Master in the event of strike action by shore personnel and also industrial action by the International Transport Workers Federation (ITF'). Finally, the chapter examines the problems which arise from the growing incidence of drug smuggling on board cargo vessels.

For ease of reference an outline of this chapter is as‑follows:

Trade Disputes ‑

On board the vessel,

Strikes by shore personnel,

ITF disputes;

Disciplinary Procedures;

Drug Smuggling.

In the appendix to this chapter, trade disputes and disciplinary problems are discussed in the context of Greek law.

Trade Disputes

Under English law, a trade dispute is a dispute between workers and their own employers which relates wholly or mainly to the conditions of employment, the engagement and non‑engagement of workers, allocation of work and duties, discipline, and trade union matters. Industrial action is lawful only if the trade union has obtained the support of its members through a secret and properly conducted ballot.

On Board the Vessel

A seaman on a United Kingdom registered vessel may leave the ship in contemplation or furtherance of a trade dispute if he has given the Master at least 48 hours' notice. This notice will be valid only if given when the vessel is within the seaman cannot be compelled to go to sea in the 48 hour period following the giving of the notice even if there are clauses in the crew agreement which prevent him from participating in trade disputes.

Any industrial action on board a United Kingdom ship when the ship is not safely moored in the United Kingdom is a criminal offence. The owners in such a situation may consider bringing criminal charges against the seamen participating in the action.

Whenever there is the likelihood of a trade dispute on board the vessel, the Master should follow carefully all the procedures listed below. The Master should ensure that:

The seamen's accounts of wages are up to date and any payments which are due are made

promptly;

All necessary steps are taken to guarantee the safety of all persons on board the vessel and the medical staff are alerted;

The ship and her equipment are kept in a seaworthy condition in order to allow the vessel to continue the voyage as soon after the resolution of the dispute as possible and all steps taken to maintain the vessel are fully and accurately recorded ‑

All work on board the vessel should be done in a discreet 'manner so as not to provoke any incidents with the seamen involved in the industrial action;

The names of the seamen involved in any action are recorded in the official log book ‑

In order not to aggravate the dispute, the record in the log book should be limited to a short generalised entry merely stating that the normal working of the ship was disrupted by reason of certain seamen (naming the seamen) being on strike in furtherance of a trade dispute. The Master may consider keeping his own separate record of the factual details surrounding the industrial action in his notebook. This record could then be made available to the owners if they wish to bring any claims against the striking seamen (although the owners are unlikely to pursue such claims). However, the Master should note that if his notebook is used as evidence, the entire notebook must be made available to the opposing side. Therefore, it is important that such notebooks only contain facts and not opinions or other material which could prejudice owners (please refer to part 11 of the introduction);

In the event that picket lines are set up, the picketers are assured that any officers crossing the picket line are only doing so to reach their living quarters and are not attempting to break the strike;

Before taking the vessel to sea, a full and properly trained and qualified crew are on board and all safety requirements are fulfilled;

As soon as any industrial action is contemplated owners and their local agents

are informed and kept closely advised of all developments.

Finally, in the interests of all the parties involved, the Master should never participate in any strike of seamen or officers, or attempt to break the strike. If the Master becomes implicated in the strike, the danger exists that local police, military, or company agents will over rule his authority and displace the authority of the Master.

ITF Disputes

Since 1972, the ITF has been active in organising boycotts and crew strikes against vessels flying 1lags of convenience'. The aim of the ITF is to enforce minimum ITF conditions on these vessels relating to wages and terms of employment.

An ITF boycott, or 'blacking' as it is sometimes called, occurs when shore personnel, which could include stevedores, lock keepers, boatmen and line handlers, tug crews, and pilots, refuse to provide services to a particular vessel earmarked by the ITF. The shore personnel involved in the boycott usually will belong to an ITF affiliated trade union. The ITF action also may be supported by a crew strike on board.

In order to avoid boycotts against a vessel, many charterers now insist on the owners obtaining a 'blue certificate' from the ITF which would exempt the vessel from any ITF action. The effect of the 'blue certificate' is that crew agreements are governed by the terms of the current ITF Collective Agreement.

If a boycott is directed against a vessel, it is likely that ITF inspectors will attempt to persuade the Master to enter into an ITF agreement. The Master should immediately inform his owners and ask for full instructions or request owners to send a representative to deal with the demands.

At all stages, the Master should ensure that a full and accurate record of the events is made and that owners are kept fully informed. As ITF boycotts are legal in many countries, the Master can do very little else but sit out the boycott. A boycott carries less force and is pursued with less enthusiasm by both the strikers and the media if the Master and officers act calmly and are not antagonistic.

Strikes by Shore Personnel

In the event of strike action on shore, loading and discharging operations on the vessel are likely to be delayed. The wording of any charter‑party under which the vessel is operating will determine whether the charterers or the owners will bear the responsibility for any losses incurred as a result of the delay.

As there are likely to be claims arising as a result of the strike with regard to the running of laytime, off‑hire, or in the case of a perishable cargo, cargo damage, the Master should contact the local

P&I correspondent as soon as possible. If the vessel is carrying a perishable cargo, the claims may be potentially very large, and the P&I correspondent will assist the Master to minimise the damage. The Master may contact the P&I correspondent without any fear of escalating the action being taken on shore as the correspondent will not be a party to the dispute.

If a load or discharge port is named in the contract, there is an absolute obligation on the Master to take his ship to that port although it is strike bound. There is the possibility that the charter‑party under which the ship is operating allows for the vessel to load or discharge at an alternative port. If the Master is approaching a port which is strike bound, he should contact owners to discuss this possibility (the reader

should also refer to section 1.4.).

While a vessel is in a strike bound port, the Master should ensure that the officers and crew do nothing that will aggravate the dispute. He also should ensure that all the facts relating to the strike are fully and accurately recorded in the log book. This record should include the amount of time lost and any additional expenses incurred by the vessel. In addition, the Master should keep a scrapbook of local newspaper reports of the strike.

Disciplinary Procedures

Disciplinary procedures on board a United Kingdom vessel are governed by the Merchant Navy Code of Conduct. This code of conduct allows five sanctions of successively greater intensity which must be used for dealing with disciplinary problems. These sanctions are as follows:

Informal warning ‑

This warning is given for first offences of a minor nature. It usually is given by an officer at an appropriate level lower than the Master and is given immediately with no written record being kept of the incident;

Formal warning ‑

This warning is given for more serious offences or for repetition of a minor offence. It is given by the head of department and is recorded in the company files;

Master's formal warning ‑

This warning is recorded in log book and follows on after the two previously mentioned sanctions, or alternatively it is given for a serious disciplinary offence;

Master's written reprimand ‑

This is a last chance warning which is recorded in the log book. A copy of the reprimand is also given to the offender;

Dismissal ‑

This sanction may only be used for the most serious of offences.

Discipline on' board a United Kingdom ship, in all cases, should be maintained according to this code of conduct (or any similar codes provided by other flag states). In addition, offences should be dealt with as soon as possible after the event. However, in the case of more serious offences which warrant formal treatment, the Master should wait a few hours after the offence has been committed before disciplining the crew member in question. The Master, thus, will have the opportunity to ascertain all the facts surrounding the incident before he interviews the crew member and he can conduct the interview in an orderly manner.

A disciplinary interview must be conducted in accordance with the rules of natural justice. Thus, the charge against the offender must be read out and both the offender and his accuser must be present throughout the interview. If there is more than one offender, the Master should not take sides, but treat them impartially. The offender should be allowed to be represented by a friend, and any statements made by witnesses will be subject to cross examination. The decision will be made once the offender has been given the chance to make his statement. When a decision has been made, the Master should ensure that all the relevant forms are prepared in the presence of the offender and that all concerned are informed of the decision.

The most common offence committed on board is absence without leave from the place of duty, often in conjunction with being drunk. If a crew member does come on duty under the influence of alcohol, he should be sent to his quarters for his own safety and the safety of others. The Master should ensure that all witnesses make a written statement, testifying to the unsuitable condition of the crew member.

The Master himself should deal with ail cases of refusal to obey an order and all cases of fighting so he is aware of the underlying problems which led to the incident. He also should personally deal with crew members who go missing from the ship and later rejoin. All cases dealt with by the Master should be recorded in the log book. If the vessel incurs extra expenses in the form of hiring replacement labour as a result of the crew member's conduct, the Master may make a suitable deduction from his wages. The Master should ensure that a record is kept of all expenses incurred and deductions made.

The Master, in the case of the most serious offences listed in paragraph 9 of the code of conduct, may dismiss the offender. The code of conduct provides that the Master may summarily dismiss an offender without any prior warnings in certain circumstances. The Master should only resort to summary dismissal in cases of gross misconduct. Most dismissals will be preceded by at least one recorded warning. In the majority of cases, the Master will dismiss a crew member at the end of the voyage.

Whenever a crew member has been dismissed from the vessel, the Master, in order to counter a possible unfair dismissal claim, should keep a full and accurate record of all warnings both formal and informal given to the crew member over as long a period as possible and a detailed account of the reasons why he was dismissed. In addition, a detailed account should be kept of any expenses deducted from the crew member's wages in order to cover repatriation costs. This account as well as the crew members account of wages should be entered in the log book.

if a crew member has committed a very serious offence, dismissal alone may not be sufficient. The Master, in this case, should refer to offending crew member to the Central Secretariat of the Merchant Navy Discipline Organisation. He should collect and document as much evidence as possible and prepare Form MND 1 provided by the Secretariat. The original of the form with an accompanying report must be sent to the Secretariat and a copy sent to the owners. Another copy must be given to the crew member in question, and a fourth copy placed in the ship's files. A shore based

tribunal will conduct an inquiry and decide whether to dismiss the crew member from the merchant navy.

If the crew member has committed a criminal offence or an offence under the Merchant Shipping Acts, the Master and owners may decide to refer the case to the authorities. The Master should ensure that all witnesses make written statements, and a complete account of the incident is entered in the log book with the statements annexed to the log. The entire file must be sent to the owners so they may present the case to the authorities.

Drug Smuggling ‑ United States' Policy

Drug smuggling on merchant ships has been on the increase during the last decade. Although smuggling occurs in most parts of the world, the largest markets are North America and Western Europe. In some countries such as Malaysia, the death penalty may be imposed on offenders. If drugs are found on a merchant vessel, the ship will be subject to heavy fines, and in some cases, confiscation.

In 1986, the United States adopted a zero tolerance policy towards the carriage of illicit drugs on merchant ships which has placed a heavy financial burden on ship owners and their P&I Clubs. Although confiscation of the vessel and fines for criminal offences are outside the traditional cover provided by P&I insurance, the clubs generally are prepared to cover owners in cases where there has been no complicity by the owners or their employees.

Drug smugglers have found it increasingly easier to smuggle drugs in merchant ships rather than speed boats or aeroplanes with little cost and at no risk to themselves. In 1986, only 1.7% of the marijuana smuggled into the United States came from merchant ships. By 1988, the amount of marijuana smuggled into the United States in merchant ships had increased to 37.9%. The United States customs in one instance seized as much as 12,000 pounds of cocaine with a street value of almost

$100,000,000. The problem has affected all carriers and even the largest and most respectable carriers have found themselves the innocent victims of smugglers.

Under United States law, if drugs are found on a merchant ship, owners will be subject to the penalties mentioned. Owners will be held liable even if the drugs are concealed in a sealed container which, under normal circumstances, would not be opened prior to loading, unless they can show that all possible precautions were taken to prevent smuggling.

The United States customs believes that shipping lines must improve their security to ensure that they are not being used as the unwitting agents of drug smugglers and has been pressing shipping lines to impose strict security measures during loading. In recent years, a total of 256 carriers to the United States have signed a Carriers Initiative Agreement with the authorities under which the carriers undertake to cooperate with customs and to take 1he utmost care' to prevent their vessels from

being used by smugglers. Under the agreement, ship owners have agreed that the ship's officers will regularly search for narcotics, seal specific compartments on the vessel, provide advance copies of manifests, and assist customs and inform them of any suspicious activity.

The Master should ensure that anything done in connection with the agreement is fully and accurately entered in the log book. Masters and ship's officers should also be aware of the International Chamber of Shipping guidelines on the recognition and detection of drugs.

APPENDIX

TRADE DISPUTES AND DISCIPLINARY

PROCEEDINGS UNDER GREEK LAW

Trade Disputes

Strikes on board Greek cargo vessels are rare as they may be so disruptive as to put the safety of the vessel at risk. The legislation also acts as a powerful deterrent. Under Greek law, industrial action may only take place after a special ballot is called. If no ballot is called, the strike will be illegal and may be banned by the courts. Any form of strike action on board a vessel will result in the suspension of a seaman's contract and a cessation of his wages. Furthermore, the Greek Code of Public Maritime law provides that strikes by crew members may be considered a mutiny if directed against the Master's authority.

In recent years, there have been several instances of ITF activity directed against cargo vessels flying a flag of convenience, but owned by Greek interests. If an ITF boycott does lead to the Master signing an ITF agreement, crew members may not be able to enforce this agreement. The Greek courts have held that the terms of an ITF agreement are not binding if they have been imposed upon the Master by duress.

As a result of this ruling, the Master should ensure that if his vessel becomes the subject of ITF activity, and he is forced into signing an ITF agreement, he fully and accurately records all events surrounding the ITF boycott and discussions with the ITF representatives.

Disciplinary Proceedings

Disciplinary procedures on board a Greek vessel are governed by the Greek Code of Public Maritime Law which imposes four kinds of sanction for disciplinary problems:

1. Reprimand;

2. Fine up to one‑fifth of the statutory wages;

3. Temporary disqualification of licence;

4. Permanent disqualification of licence.

A reprimand or fine may be imposed by either the Master or the port authorities. If a seaman is fined, he may be refused future employment until he has paid the fine.

The crew member may appeal against the Master's decision to the port authorities.

If the Master imposes either of these sanctions, he must make an entry in the 'Penal Book' and the   official log book. These entries will be vital evidence if the crew.

member is eventually dismissed for his misconduct and brings a claim for unfair dismissal.

Temporary or permanent disqualifications may only be imposed by the Disciplinary Committee of the Mercantile Marine in the first instance and by the Appellate Disciplinary Committee of Mercantile Marine on appeal.

Under the Greek Code of Private Maritime Law, the Master also has the right to terminate a crew member's contract prematurely and without notice if he has committed a disciplinary offence specified by the Code. The Master's decision to dismiss a crew member must be made as quickly as possible. Otherwise, in a claim for unfair dismissal by the crew member, the Courts may find that either the gravity of the alleged offence is undermined by the Master continuing to accept the offender's services, or the connection between the alleged offence and the dismissal is too tenuous.

If the crew member successfully brings a claim for unfair dismissal, the owners must compensate him by paying him fifteen, thirty, or forty days wages depending on the remoteness of the port where the seaman has been dismissed.

To defend a claim for unfair dismissal, owners will have to produce the official log book setting out the circumstances of the offence committed and 'Penal Book' recording any previous sanctions imposed on the crew member. Unsworn statements from the officers and crew are also useful.

Where a Master has dismissed a crew member, he must make an entry in the 'Seafarer's Book' stating the cause of the dismissal. He must be careful to use wording that is as general as possible to avoid becoming the subject of defamation or disciplinary proceedings himself. The following form of wording is recommended:

'The seaman is dismissed by reason of disciplinary offence.

The Master, however, should make a more detailed entry in the official log book describing fully the circumstances of the dismissal. All evidence gathered by the Master in connection with a criminal act committed on board the vessel may be used in future disciplinary proceedings.

If a crew member commits a criminal offence, the Master's authority includes magisterial duties. If the offence is committed while the vessel is at sea, the Master is under a duty to conduct inquiries in order to collect material evidence in connection with the offence. The Master will have to appoint an officer to act as a secretary and take sworn statements from crew members or other persons who witnessed the incident. Any inquiry conducted by the Master in connection with a criminal act in which he was involved, will be void.

In the case of desertion by a crew member, the Master is required to draw up an indictment, setting out the circumstances of the crime. Secretarial duties in drawing up the indictment are carried out by the chief officer if the deserter is a member of the deck crew, or the chief engineer if the deserter is a member of the engine crew.

Although standard forms of the indictment may be obtained from the Ministry of Mercantile Marine, a general statement of the incident is sufficient.

The indictment, accompanied by extracts of the log book describing the desertion and the 'Seafarers Book are submitted to a port authority or Greek Consulate for transmission to the Ministry of Mercantile Marine or submitted directly to the Ministry.

The Ministry will then commence criminal and disciplinary proceedings against the accused seaman, who, if found guilty, faces a sentence of up to one year imprisonment, commutable by fine, and a temporary disqualification of his licence ranging from two to five years.